Wednesday, September 12, 2018

DNC v. Reagan (9th Cir. - Sept. 12, 2018)

You can read today's 125-page, single-spaced opinion by the Ninth Circuit -- as I did -- in its entirety to get a keen sense of the jurisprudential differences between Judge Ikuta (who authors the majority opinion) and Chief Judge Thomas (who authors the dissent).  Both jurists are bright and express what are undeniably coherent views.  But you're almost certainly going to like one approach over the other, depending on your personal jurisprudential (and perhaps political) tastes.

There are nonetheless two parts of Judge Thomas' dissent that strike me as undeniably true.  First, that the right to vote is an incredibly important one; indeed, the foundation of all other rights.  So the judiciary should be at its most vigilant in protecting that right.  (John Hart Ely makes some darn good points in this regard.)

Second, as Judge Thomas artfully puts it, "voting should be easy in America."  That seems to me to be unquestionably right.  To a degree, voting is fairly easy.  But it's also undeniably true that it's not as easy as it could be.  And that there are people (and people-populated institutions) who, for political and other reasons, deliberately want to make it harder.  Because we all know full well that the harder you make it, that tends to change the results (e.g., that it depresses the votes of minorities and other groups that tend to vote more for the Democratic as opposed to the Republican party).

So there are substantial incentives in at least one part of the electoral sphere to make it harder, not easier.  Even though, under a Rawlsian veil of ignorance, we'd all agree to make it easy.

Hence the tension for the judiciary.  The judiciary is limited by law.  We can't do something merely because we think it's a good idea.  Or strike down everything that's a bad idea.  That's not our job.

Yet when you've got a political system and state-sponsored electoral regime that deliberately tries to suppress (e.g., not count) votes of its citizens, what are you supposed to do?

So, to take just one part of the present case, you've got a state (Arizona) that does something (1) that has a huge effect compared to other states (the chart on page 78 of the opinion is indeed striking), and (2) that seems normatively like something we'd all agree we shouldn't do (at least if we didn't know which political party it benefits).  In this modern, computer-verified era, who the hell cares at which particular precinct you physically cast your ballot?  If you're validly registered and qualified to vote, why in the world would we care whether you exercise this right at the polling place that's one block to the right of your house as opposed to the polling place one block to the left?  The state has a list of all registered voters.  If you're on it, your vote should count.  If not, then not.  End of story.

To take but one example:  My designated polling place is (typically) two blocks from my house, in a church.  But that same church has two polling places; one immediately next to the other, one on the right door of the church, one on the left.  They've got different numbers, and I've got to make sure I go to the one with the correct number.

But who cares?  Say I accidentally walked into the wrong one and cast a ballot.  As long as the state can tell -- as it easily can -- that I'm in fact a properly registered voter, why would it refuse to count my vote just because I walked in the wrong door or accidentally transposed numbers?  Any neutral person would say:  "Yeah, that's a mistake, but we know he's entitled to vote, so let's let him.  It's an important right."  The only reason we don't (e.g., Arizona doesn't) is because we know full well how that will affect the votes on the merits.  And we're even (mostly) honest about that.  Political Party X wants to not count those votes because they're likely not for X, whereas Political Party Y deeply cares about counting them because they're likely for Y.  But we should all want to count them.  Because it's a critical part of democracy to get the input of our citizenry and count their votes.  It's a testament to where we are as a country that we nonetheless have serious fights about whether we should actually bother to count these votes, or instead look for an excuse -- and that's what it is, folks:  an excuse -- not to count them.

Are there legitimate reasons why one should prefer that people vote in their designated precincts?  Sure there are.  We don't want some precincts overwhelmed (with others empty), it's marginally easier to have a smaller list of registered voters than a larger list, etc.  But these are reasons at the margin.  If we actually cared about voting -- the most critical of our rights -- those reasons would indisputably give way when nonetheless presented with a vote that we knew full well was made by a qualified voter who wanted it counted.  That we don't -- that we instead go to great lengths (like Arizona does here) to make sure that we don't count those votes -- speaks volumes.

None of this is necessarily dispositive of where you come out in the fight between Judges Ikuta and Thomas.  As I said, one may have competing views about the role of the judiciary in the enforcement of these rights.  That's a larger jurisprudential debate.

But I think it nonetheless bears mention that we're in a world in which certain people deliberately want to make the exercise of critical constitutional liberties more difficult.  End voting at an earlier time.  Decrease the number of polling places.  Make lines longer.  Don't count votes mistakenly made at the wrong voting booth.

I can promise you that wouldn't make sense if you didn't know which way those practices tended to distort what's supposed to be a reflection of the will of the voters.  It's unfortunate that this reality is what's driving things here.  And that we (mostly) aren't even embarrassed about it.

Anyway, great (albeit lengthy) opinions on both sides.  Worth a read on the off chance you've got two hours to get through 'em.